What is a Probate Proceeding?

When a loved one has passed those left behind are often at a loss for how to proceed.  What needs to be done?  When must it be done?  Can I delay the process to allow time to grieve?  Following are some general guidelines to help answer these questions for residents of Texas.  Since laws vary from state to state and change over time, you will want to consult an attorney to ensure you have information relevant to your situation.

There are several questions that must be answered to determine what options exist and what proceeding is required.

  • Is there a will?
  • What type of property is owned?
  • Are there unpaid debts of the estate?
  • How much time has passed since the death of your loved one?

A standard probate proceeding may be preferred or required if there is a will, property such as a home or car is owned or debts of the estate exist.  However, it must be less than four years since the death of your loved one.  Texas allows for independent administration if the appropriate language is included in the will.  Independent executors can be appointed without the appropriate language if all of the beneficiaries agree to it.  If there is no language and no agreement then a dependent administration will be created.  The key difference between the two is the number of court appearances required.  The independent executor must only appear once where the dependent administrator must get court permission for every decision that is made.

If a will exists, real estate is owned and the only debts of the estate are a secured lien on the real estate then a muniment of title proceeding can be used.  This procedure is completed with one hearing and must be commenced within four years of the death of your loved one.  No executor or administrator is appointed because nothing is required except transfer of title to property.

If no will exists and property is owned but the estate is low in value, a small estate affidavit is a proceeding that can be used.  This requires two disinterested witnesses and all heirs join in the affidavit that is submitted to the court.  No executor or administrator is appointed.

If no will exists and property is owned or there are debts of the estate or and there is a question about who are the heirs, then a determination of heirship is the starting point.  There is no deadline for this procedure as there is with a standard probate.  The court will appoint an attorney ad litem if there are unknown heirs or heirs whose whereabouts are unknown.  If an administrator or executor is needed to handle the estate then this proceeding is filed in conjunction with one of the probate proceedings detailed above.

An affidavit of heirship can be used whether a will exists or not.  Two disintrested witnesses must swear to facts of the deceased’s life before a notary.  The affidavit is then filed in the deed records.  However, the affidavit does not become effective for five years.

In many cases, the death of a loved one will be followed by some type of legal proceedings. Some people feel a need to postpone any proceedings until some time to grieve has passed.  While others want to get the process over with so that grieving and then life can move forward.  The best way to ensure you loved ones have either option is with advanced planning.  An estate plan including a will provides the most control for those who are left behind.

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Law Offices of Debbie J. Cunningham

Debbie Cunningham is an Irving attorney providing affordable estate planning to the Dallas/ Fort-Worth areas. She understands the steps you should take to protect yourself and your loved ones. Debbie is family-focused and wants to ensure her clients are fully informed on the options that are available for their families. Debbie’s own blended family has given her valuable insights into the complexities of family dynamics.

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